Posted on February 1st, 2019 Immigration Attorneys, LLPToday, January 30, 2019, Department of Homeland Security (DHS) posted a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption.

The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. Additionally, it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule will be published in the Federal Register on January 31 and go into effect on April 1, 2019.

Note that though USCIS has decided to suspend the electronic registration requirement component of the new rule for the upcoming cap season, the reverse petition selection order will apply to all H-1B cap petition s submitted on or after April 1, 2019.

Under the current H-1B selection process, if the regular cap and advanced degree exemption are reached during the first five (5) business days, USCIS randomly selects sufficient H-1B petitions to reach the H-1B 20,000 advanced degree exemption first. Then, USCIS randomly selects sufficient H-1B petitions from the remaining pool of beneficiaries, including those not selected in the advanced degree exemption, to reach the H-1B 65,000 regular cap limit.

This final rule reverses the selection process so that USCIS will randomly select petitions for the H-1B regular cap first, including petitions eligible for the H-1B advanced degree exemption. Then, USCIS will randomly select registrations for the H-1B advanced degree exemption.

USCIS believes that changing the petition selection order will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations. Specifically, USCIS estimates that the change will result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

Interesting enough, while addressing one of the comments, DHS stated, without citing reliable data, the following:

...While the reversal of the selection order does not guarantee that the selected registrant will be the most skilled or highest paid beneficiary, it increases the probability that a beneficiary with a U.S. master’s degree will be selected. And if a U.S. master’s degree beneficiary typically earns more in wages, that beneficiary “may” earn a higher wage than a non-selected beneficiary. [emphasis supplied]

The above explanation does not fit well and addresses the Buy American and Hire American Executive Order, which directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Nonetheless, in closing, it is important to remind that USCIS will proceed with implementing reverse petition selection order for the FY 2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B registration requirement.